S.J.C. Order of Indefinite Suspension entered by Justice Spina on June 30, 2010, with an effective date of July 30, 2010.1

SUMMARY2

The respondent had been a trustee of a trust since January 2003. By December 1, 2007, the value of the trust was $135,305.79, and the funds were held in a diversified portfolio account. Between May 6, 2008 and May 14, 2009, the respondent intentionally misused at least $71,500.00 of the trust res by making four withdrawals from the portfolio and then using the funds withdrawn for personal or business purposes unrelated to the purposes of the trust. In the fall of 2009, the beneficiary of the trust attempted to obtain information from the respondent about the status of the trust but the respondent failed to return her calls and failed to meet with her.

In December 2009, the beneficiary retained counsel to obtain an accounting.
On December 16, 2009, counsel filed a civil action against the respondent in the Probate and Family Court Department alleging, in substance, that the beneficiary had not received any accounting of the trust despite repeated demands and that she was fearful that the respondent had dissipated the trust funds. On December 16, 2009, counsel appeared in the Court and obtained on behalf of the beneficiary an ex-parte temporary restraining order. The Court ordered all parties to appear before the Court on December 21, 2009 at 9:00 a.m. The respondent received notice of the hearing but did not appear in Court as ordered.

On December 21, 2009, the Court entered an interlocutory order continuing the temporary restraining order then in force. In that order, the Court ordered that the funds be transferred to counsel and counsel should then hold any funds in an interest-bearing account. The respondent received notice of the order but did not provide any of the corpus of the trust to counsel. On February 15, 2010, counsel filed a complaint for civil contempt against the respondent. The respondent was served with a contempt summons scheduling a hearing for March 1, 2010, at 9:00 a.m. The respondent did not appear as ordered on March 1, 2010, and on that date, a capias issued for his arrest.

On or before March 31, 2010, the respondent, aware of the capias, voluntarily appeared before the Court and informed the Court that he had dissipated $71,500.00 of the trust res and was working on a plan to make reimbursement.

As of May 10, 2010, the respondent had not made restitution and on that date, the Court found the respondent in contempt and ordered his incarceration. On or before May 14, 2010, the respondent obtained funds from private sources to reimburse the trust and on May 14, 2010, paid the funds to the trust and purged himself of the contempt.

The respondentís intentional misuse of fiduciary funds with actual deprivation resulting, at least temporarily, violated Mass. R. Prof. C. 1.15(b), (c) and 8.4(c) and (h). The respondentís failure to promptly deliver to counsel the funds he was ordered by the Court to deliver violated Mass. R. Prof. C. 1.15(b) and (c) and 3.4(c). The respondentís failures to appear in Court as ordered on December 21, 2009, and March 1, 2010, violated Mass. R. Prof. C. 3.4(c), 8.4(d) and 8.4(h).

In aggravation, the respondent previously received a public reprimand for failure to promptly deliver trust funds to a third person entitled to receive the funds and failure to cooperate in bar counselís investigation of two files. Public Reprimand 2009-006, 25 Mass. Att'y Disc. R. ___ (2009).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by indefinite suspension. On June 14, 2010, the Board voted to accept the partiesí stipulation and to recommend the agreed upon disposition to the Supreme Judicial Court. On June 30, 2010, the Court so ordered.

FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.